EXHIBIT 10.33
SECOND AMENDMENT TO LOAN AGREEMENT
----------------------------------
This Second Amendment to Loan Agreement (the "Amendment") is dated
and effective as of February 25, 1999, by, between and among EQUITY
UNDERWRITING GROUP, INC., EQUITY INSURANCE MANAGERS, INC. and 21ST
CENTURY CLAIM SERVICES, all Kentucky corporations (collectively referred
to herein as the "Borrowers"); UNIFIED FINANCIAL SERVICES, INC., a
Delaware corporation (referred to herein as the "Guarantor"); and BANK
ONE, KENTUCKY, NA, a national banking association (referred to herein as
the "Bank").
RECITALS
--------
1. The Borrowers, the Guarantor and the Bank desire to amend
the Loan Agreement dated as of January 20, 1998 (the "Loan Agreement")
as amended by the First Amendment to Loan Agreement dated as of July 23,
1998 (the "First Amendment").
2. The parties herein have agreed to enter into this Second
Amendment in order to further amend the terms and conditions as set
forth in the Loan Agreement and the First Amendment.
3. The loan documents described in the Loan Agreement and the
First Amendment and this Agreement and the other documents and notes
referred to herein shall collectively be referred to as the "Loan
Documents". All of the present notes and the notes referred to herein
are collectively referred to as the "Notes" and the aggregate amount
owed to the Bank under the Notes and the other Loan Documents shall be
referred to as the "Indebtedness".
NOW, THEREFORE, the parties, in consideration of the mutual
covenants and agreements contained herein, covenant and agree as
follows:
1. Modification of Term Loan. The term loan as defined in
-------------------------
the Loan Agreement shall be amended to provide for a maturity date of
June 20, 1999, with payments due on the 20th day of each month. The
amended term loan shall be evidenced by the Amended and Restated Term
Note dated February 25, 1999.
2. Extension of Additional Credit. The Bank shall provide
------------------------------
the Borrowers with an additional loan in the principal amount of
$800,000.00, which shall have a maturity date of June 30, 1999. It
shall be evidenced by the Term Note dated February 25, 1999.
3. Renewal of 21st Century Note. The Bank agrees to renew
----------------------------
the 21st Century Note to June 30, 1999, which shall be evidenced by the
Renewal 21st Century Note dated as of January 30, 1999.
4. Substitution of Guaranties. The Bank hereby agrees to
--------------------------
accept the Guaranty of the Guarantor as evidenced by the Guaranty dated
February 18, 1999 (the "Guaranty"), in substitution of the Guaranties of
Xxxx Xxxxxx Xxxxx and D. Xxxxxxx Xxxxx, and the Bank further agrees that
Xxxx Xxxxxx Xxxxx and D. Xxxxxxx Xxxxx are hereby deemed to be released
of their obligations as Guarantors of the aforementioned Loans which
they have guaranteed upon execution and delivery of all documents
required herein.
5. Additional Reporting Requirements. In addition to the
---------------------------------
reporting requirements contained in the Loan Agreement, as amended, the
Guarantor shall, within sixty (60) days after the end of each fiscal
quarter (and beginning with the March 31, 1999 quarter end), provide
Bank with balance sheets,
statements of income and retained earnings as of the end of such fiscal
quarter, and properly completed calculations necessary to test
compliance with all of the financial covenants set forth herein, in form
and content reasonably acceptable to Bank, and all in reasonable detail,
and all such financial statements shall be internally prepared in
accordance with GAAP consistently applied and certified as correct by
Guarantor's chief financial officer. Provided, however, the Guarantor
shall not be obligated to deliver the Guarantor's internally prepared
balance sheet and income statement for the last month of the Guarantor's
fiscal year.
6. Collateral. The Indebtedness shall continue to be secured
----------
by the Security Agreements dated January 20, 1998, from the Borrowers
whereby the Borrowers pledged to the Bank a valid and enforceable
security interest in all of their assets as described in each of the
Security Agreements. Further, the Guarantor shall execute and deliver
to the Bank its Stock Pledge and Security Agreement whereby the
Guarantor pledges and assigns to the Bank all of its interest in the
Common Stock of Equity Underwriting Group, Inc. and Commonwealth Premium
Finance Corporation (the "Stock") as shown on Schedule A attached to the
Stock Pledge and Security Agreement dated February 25, 1999.
7. Conditions Precedent. The obligation of the Bank to enter
--------------------
into this Agreement and the other Loan Documents is subject to the
condition precedent that the Bank shall have received and approved on or
before the closing each of the following, in form and substance
reasonably satisfactory to the Bank:
a. This Agreement, the Amended and Restated Term Note,
the Term Note, the Renewal 21st Century Note, the Guaranty and the Stock
Pledge and Security Agreement shall be duly executed and delivered by
the Borrowers and the Guarantor to the Bank.
x. Xxxx Report. A lien report from the counsel for the
-----------
Guarantor, which states that the Bank has first and prior lien on the
Stock.
c. Articles and By-Laws; Evidence of Existence/Good
-------------------------------------------------
Standing of the Guarantor. Certified copies of the Guarantor's
-------------------------
Articles and By-Laws and the Certificate of Existence/Good Standing of
the Guarantor issued by the Secretary of State of Delaware.
d. Evidence of Corporate Action by the Borrowers and the
------------------------------------------------------
Guarantor. Certified copies of all corporate action taken by the
---------
Borrowers and the Guarantor, including resolutions of the Borrowers and
the Guarantor authorizing the execution, delivery and performance of the
Loan Documents. A certificate of the Secretary of the Guarantor
certifying the names and true signatures of officers of the Guarantor
authorized to sign the aforementioned documents to which it is a party.
e. Opinion of Counsel. The Borrowers and the Guarantor
------------------
shall provide the Bank with an opinion of counsel satisfactory to the
Bank regarding such matters as the validity and enforceability of the
Loan Documents.
8. Representations and Warranties of the Borrowers. Each of
-----------------------------------------------
the Borrowers represents and warrants to the Bank as follows:
a. Good Standing and Due Qualification. Each Borrower
-----------------------------------
is a corporation, duly incorporated, validly existing and is duly
qualified and in good standing under the laws of each jurisdiction in
which such qualification is required by law.
- 2 -
b. Corporate Power and Authority. The execution,
-----------------------------
delivery and performance by the Borrowers of the Loan Documents have
been duly authorized by all necessary corporate action.
c. Legally Enforceable Loan Documents. The Loan
----------------------------------
Documents executed and/or delivered in connection with this Agreement
are legal, valid and binding obligations of each Borrower and
enforceable in accordance with their respective terms, except to the
extent that such enforcement may be limited by applicable bankruptcy,
insolvency and other similar laws affecting creditors rights generally.
d. No Adverse Change. No material adverse change has
-----------------
occurred in any of the businesses of either of the Borrowers and no
material adverse change has occurred in the financial condition of
either of the Borrowers since the date of the most current financial
information provided to the Bank.
e. No Defenses or Setoffs. As of the date hereof, the
----------------------
Borrowers are not aware of any defenses, credits or setoffs to the
payment of the Indebtedness evidenced by the Notes, or to the
enforceability of the Notes, or the Loan Documents, nor are there any
claims, actions or causes of action which could be asserted against the
Bank relating to the transactions evidenced by any of the Loan
Documents.
f. Limited Effect of Amendment. Except as specifically
---------------------------
amended herein, the terms and conditions of the Notes, the Loan
Documents and all other existing agreements between the parties are
unaffected by this Amendment and shall continue to be binding upon the
Borrowers and the Bank and continue to remain in full force and effect.
9. Representations and Warranties of the Guarantor. The
-----------------------------------------------
Guarantor represents and warrants to the Bank as follows:
a. Good Standing and Due Qualification. The Guarantor
-----------------------------------
is a corporation, duly incorporated, validly existing and is duly
qualified and in good standing under the laws of Delaware.
b. Corporate Power and Authority. The execution,
-----------------------------
delivery and performance by the Guarantor of the Loan Documents to which
it is a party have been duly authorized by all necessary corporate
action.
c. Legally Enforceable Loan Documents. The Loan
----------------------------------
Documents executed and/or delivered by the Guarantor are legal, valid
and binding obligations of the Guarantor and enforceable in accordance
with their respective terms, except to the extent that such enforcement
may be limited by applicable bankruptcy, insolvency and other similar
laws affecting creditors rights generally.
10. Affirmative Covenants. So long as any portion of the
---------------------
Notes shall remain unpaid, the Borrowers each agree to fully comply with
all of the affirmative convents contained in the Loan Agreement and the
First Amendment. Further, the Borrowers shall fully comply with the
negative covenants contained in the Loan Agreement and the First
Amendment.
11. Notices. All notices and other communications given to or
-------
made upon any party hereto in connection with this Security Agreement,
the Notes or any other Loan Documents shall, except as herein or therein
otherwise expressly provided, be in writing, sent by certified or
registered mail return receipt requested, as follows:
- 3 -
If to Borrower: 000 Xxxxxxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
ATTN: Xxxxxx Xxxxx
with a copy to: Xxxxxx X. Xxxx, Xx.
Xxxxxx & Xxxxxxxx
0000 Xxxxxxxxx Financial Center
Xxxxxxxxx, Xxxxxxxx 00000
If to Guarantor: Unified Financial Services, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
ATTN: President and CEO
with a copy to: Xxxxxxx X. Xxxxxx
Xxxxxxxx Xxxxxx
One Mercantile Center, Xxxxx 00000
Xx. Xxxxx, Xxxxxxxx 00000
If to Bank: Bank One, Kentucky, NA
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
with a copy to: Xxxx Xxxxxx
Bank One, Kentucky, NA
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
12. Entire Agreement. This Amendment and the other Loan
----------------
Documents constitute the entire understanding among the parties with
respect to the subject matter hereof and supersede any prior agreements,
written or oral, with respect thereto. This Agreement may not be
amended without the prior written consent of all parties herein.
BANK ONE, KENTUCKY, NA
BY: /s/ Xxxxxx Xxxxxx
--------------------------------------
TITLE: Officer
-----------------------------------
EQUITY INSURANCE MANAGERS, INC.
BY: /s/ Xxxx X. Xxxxx
--------------------------------------
TITLE: President
-----------------------------------
- 4 -
EQUITY UNDERWRITING GROUP, INC.
BY: /s/ Xxxx X. Xxxxx
--------------------------------------
TITLE: President
-----------------------------------
21ST CENTURY CLAIM SERVICES, INC.
BY: /s/ Xxxx X. Xxxxx
--------------------------------------
TITLE: Secretary/Treasurer
-----------------------------------
UNIFIED FINANCIAL SERVICES, INC.
BY: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
TITLE: Chairman, CEO, President
-----------------------------------
- 5 -
